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insisted it was by law amendable; and referred to the copy of the record, wherein test. Die Feb. was struck out by prosecutor's council; and afterwards put upon the roll by Mr. Harcourt. (S. Dodd.)

The defendant on the other hand stated, that the office of warden of the Fleet was an ancient office of inheritance, held by several grants from the Crown, and was conveyed to the warden in trust only, to enable him by law to execute it, and was subject to several mortgages and securities; and that the equity of redemption, and the inheritance for ever, is conveyed, by virtue of an act of Parliament to a purchaser, upon a valuable consideration: And that in the second year of their late Majesties reign, Mr. Leighton, upon a suggestion that the office was forfeited by Manlove, the then warden, procured a warrant for a grant thereof to himself, but that the inquisition upon which the same was grounded, was declared illegal by the then Lords Commissioners of the Great Seal, assisted by Lord Chief Justice Holt and other judges; and so the grant had never passed the Great Seal; (2 Salk. 469.) and that Colonel Leighton had made several attempts afterwards to maintain his pretensions to the office, which were looked upon as frivilous, and nothing was done upon them, though it put the proprietors of the office to a [334] considerable expence in the legal defence of their title, for which they had had no recompence: And that notwithstanding all this, 26th February, 1697, Leighton procured another commission to enquire into the forfeiture of the office (Ford being then warden) suggesting that he had voluntarily suffered Richard Spencer, and three other persons, to escape, and had received 20 guineas for the escape of Spencer; and that the inquisition being returned into the Petty-bag office in the Court of Chancery, Ford appeared and pleaded, and denied the facts; and that these proceedings were continued by an entry upon the record by the prosecutors agents, by a day given to the parties to appear in the Court of King's bench in Octabis Hilarii, being the 20th of January, Undecimo Regis: But that the record itself was not transmitted or delivered into that Court till 3d February following so that the parties, according to the rules of law, had really no day whereupon they could appear in the King's bench, and consequently were never parties in that Court, nor the record ever there, but, according to the rules of law, yet remained in the Court of Chancery undetermined upon the issues joined, and the other pleas and proceedings there; and that this error not being observed, a trial was had at bar the 25th of November, Duodecimo Regis, and Ford acquitted of all the escapes saving only Spencer's, and was also acquitted of receiving the 20 guineas for Spencer's escape; and that the debt for which Spencer was committed was satisfied before the inquisition taken: And that there had been no evidence to prove the escape of Spencer but one Emerson, a bailiff, twice convicted of felony, and who was since found guilty of perjury for what he swore on this trial; and that this very Emerson had been bound in an obligation to Ford of 6000l. penalty, conditioned that Spencer should not escape, and that Ford's council had objected that he was not competent to prove the escape of Spencer to be voluntary in the warden; but that this objection being over ruled, Ford prayed his bill of exceptions according to the act of Parliament, which was allowed and ought to be made part of the record: And that after the trial Ford offered several matters in arrest of judgment, which had great weight with the Court, but that no opinion was yet given upon them, because in Michaelmas term last the Court took notice of the mistake aforesaid, [335] and that the record was really never before them, but totally discontinued and remaining undetermined in the Court of Chancery; and gave judgment that Ford's plea, and all the proceedings thereupon were discontinued, and Ford now insisted upon the judgment of discontinuance; and that the discontinuance appeared so palpably upon the record, that the Court of King's bench could not give any other judgment; and that the Lords had never varied the known rules of law, because of the dangerous consequences which might attend a precedent of that kind; and that in case of continuance of records, the courts of law were bound to be very exact; because the continuing them regularly before them was their only authority to proceed; and that the present case was much stronger than usual, it being a transmission of a record from one Court to another; and in criminal cases and forfeitures, the Courts of justice had most special regard to forms of law, because of the fatal